Manufacturers’ liability for the
damages caused by defective
products
Did you buy a TV that caused short-circuiting the electrical installation in your
home? Did you suffer burns because of the fire?
In such situations you can request compensation of the damage caused, thanks to the
mechanism of liability for damage caused by defective products, regulated at Community
level by Directive nr. 1999/34/CE, amended by Directive 1999/34/CE and at national lever
by Law Nr. 240/2004 regarding the producers’ liability for the damages caused by
defective products. These laws provide you protection against the risk of purchasing a
product that can endanger your life, health or legitimate interests, without excluding,
therefore, compensation for the damage that you suffered.
What is a defective product?
A defective product is a product which does not provide the safety that you legitimately
expect. You must take into account all circumstances, in particular the presentation of the
product, all foreseeable uses of the product and the time when the product was put
into circulation.
A defective product should not be confused with a dangerous one. There are products that
are dangerous by their nature, without being defective. You should be fully informed both
orally and through the usage instructions so that the product can become safe.
For example, a drug administrated in an improper dosage can be dangerous for your
health, but can also be good if you follow the instructions for its use. Thus, the defective
product does not provide the safety you are entitled to expect.
Warning! A product cannot be considered defective just because another product, with
improved safety measures, was created later.
Who is required to respond if a defective or unsafe product is sold on the market?
Who is responsible: the retailer, the wholesale seller, the importer or the manufacturer? As
a main rule, the liability for the damages caused by a defective product falls upon the
manufacturer, which can be:
• The manufacturer of the finished product, of a row material or of a part of the
product;
• Any person presenting himself as a producer, in that they register on the product
their name, trade mark or other distinctive mark;
• Any person who imports a product in Romania / from the European Union for sale,
lease, purchase or other forms of alienation in their merchandising activity;
• Each supplier of that product, if the manufacturer of the product cannot be
identified and if the supplier does not provide the injured consumer, in a
reasonable time, with the identification data of the manufacturer or of the person
who supplied the product; this provision is valid for an imported product too, if the
product does not indicate the identity of the importer, even if the name of the
manufacturer is mentioned.
What does damage mean?
• Damage or destruction of any property, other than the defective product, provided
that the good is normally for private use or consumption and has been used for your
personal use or consumption, and its value is greater than 200 Lei for the products
purchased from Romania an 500 Euro for the products purchased in the
Community;
• Damage caused by death, body or health harm.
Under what circumstances you can bind manufacturers’ liability?
Product liability is a broad concept, both in terms of people between operating and the
nature and type of liability.
In terms of people we have seen that products liability can appear between the following
people: manufacturers and the other players in the production-distribution-consumption
cycle, who acquire products for professional use, for example for resale, redistribution,
and between producers on one hand and consumers, on the other hand.
As for the nature of the products liability, it can be indictable or civil.
The type of liability- contractual liability or tort - may differ according to whether there is
or not a contractual link between you and the manufacturer and the nature of the injury.
When the defective product itself is the injury, meaning it does not meet the needs for
which it was purchased, for example the freezer that you have bought does not freeze, legal
liability must come to action, based on the required guarantee against hidden or visible
defects of the product.
Warning! Defective nature of the product should not be confused with the defect that makes
the product unfit for the consumption for which it was acquired. Such dispute is settled under
a contractual liability- the guarantee obligation.
If the defective product causes injury to other products, except itself, or to you, putting into
danger your life, health or body integrity, is the manufacturer's tort liability , even if the
product was purchased through a contract.
Manufacturers’ liability is available whether or not between him and you is a relationship
based on a contract, and you can use it both for existing damage and for the future. This
does not mean that, if the damage caused by the defective product does not fall within the
scope of Law nr.240/2004, you cannot claim compensations on the basis of contractual or
extra contractual liability, or on the basis of any other special liability system existing at
that time.
In order to bind producers’ civil liability, as it is governed by the regulations from above,
you must prove the damage, the defect and the casual relationship between the
defect and damage.
These three conditions must be fulfilled in order to bind the manufactures’ liability. It is
not necessary for the manufacturer to be negligent or be faulty for something. Meanwhile,
if you or another person has contributed to cause damage, producers’ liability could be
diminished. Moreover, if several persons are responsible for the damage they are jointly
responsible.
Between the defective product and the damage must be a causal link that you must prove
in case of a trail. The causal link between the defective product and the damage caused
means that if the product wasn’t defective, the damage wouldn’t happen.
Can the manufacturer be absolved of his liability?
The manufacturer is not guilty if he can prove that:
-he is not the one who put the product on the market; it is understood that putting the
product on the market means the action by which the product is available in the market for
the first time for distribution or use; if the manufacturer instructs the product to a person
to try it, for example a car, does not mean that he put into circulation; also if the product
was stolen and the thief used it himself or marketed, does not mean that he put into
circulation.
- the defect which caused the damage did not exist at the time when the product was put
into circulation by him or that this defect came into being afterwards; for example, the
manufacturer can prove that the same number of samples belonging to the defective
product was verified by the competent bodies and proved not to be defective.
- that the product was neither manufactured by him for sale or any form of distribution for
economic purpose nor manufactured or distributed by him in the course of his business;
- defective product is required due to conditions imposed by regulations issued by
competent authorities; if the public authorities have taken imprudent measures, and by
respecting them, the manufacturers have put defective products on market, the public
authorities will be held liable for damage caused.
- the scientific and technical knowledge at the time of the release of product did not allow
the existence of a defect detection; if, for example, a food product put into circulation is
found to be carcinogenic after some time, but at the time of release, scientific and technical
knowledge have not discovered this, the manufacturer cannot be held liable.
- the defect is due to failure by the consumer of user instructions provided in the technical
documentation accompanying the product, proven technical expertise in specialized.
The manufacturer of components of a product will not be liable for damage caused to the
consumer if he proves that the finished product manufacturer defect is due to bad design
because the assembly has been mounted or instructions given by him.
Warning! The manufacturer of the product put on market will not respond unless you
prove one of the above statements.
How to take action against the manufacturer?
To assert your rights, you must enter an legal action within three years from the moment
you became aware of the damage, the defect and the producer. Appeal must be lodged
before the end of 10 years from the release of the product.
Action to repair damage is for the court in whose jurisdiction the damage occurred. For
cross-border disputes can study the material on "Jurisdiction in cross-border contracts
concluded by consumers ", located on the ECC Romania site – www.eccromania.ro
European Consumer Centre Romania
Str. Maior Aviator Ștefan Sănătescu nr. 44
Et. 1, Ap. 2, Sector 1,
Bucharest, 011478
Tel/fax: +40.21.315.71.49
E-mail: office@eccromania.ro
Web: www.eccromania.ro
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Co-funded by
the European Union
This infosheet is part of the action 670709 - ECC-Net RO FPA which
has received funding under a grant for an ECC action from the
European Union’s Consumer Programme (2014-2020).
The content of this material represents the views of ECC Romania only and it is its sole
responsibility; it cannot be considered to reflect the views of the European Commission and/or the
Consumers, Health, Agriculture and Food Executive Agency or any other body of the European
Union. The European Commission an the Agency do not accept any responsibility for use that may
be made of the information it contains.